Warda v Specialty Fashion Group Ltd

Nature of case

1. Shortly after 9:00 am on Tuesday 31 March 2009, the plaintiff, Mrs Margaret Warda, was injured in the course of her work as a shop and sales assistant whilst in the employ of the defendant, Specialty Fashion Group Limited, at its Chester Hill store. She brings this action for damages for personal injury, claiming that her injuries were caused by the negligence of her employer. The proceedings are governed by the Workers' Compensation Act 1987 ("WC Act") and the Workplace Injury Management Act 1998 ("WIM Act").

Factual background

1. At the time of her injury, the plaintiff was descending a two-stepped A-frame folding ladder whilst using both hands to hold and to carry down to floor level, a dressed display mannequin, which she had taken down from a high display shelf in order to remove a garment from the mannequin at the request of a customer. In the course of her descent, there was no handhold available to her.
2. In those events the shop telephone rang and she became momentarily distracted by it. Her duties required that she answer the telephone on behalf of her employer because that was the manner in which her employer conveyed her instructions for her working day. In those events as she continued to descend the step-ladder, she lost her balance and then fell to the floor. In that fall, she claims to have injured her left arm, both shoulders, and her left thigh.

Issues

1. The plaintiff claims that her employer was negligent with regard to the system of work in which she was engaged at the time when she sustained her injury. The defendant denied that it was negligent in any respect, either as alleged or otherwise. In the alternative, in the event the plaintiff is entitled to a verdict, the defendant alleges there was contributory negligence on the part of the plaintiff. If that allegation is sustained, the plaintiff's entitlement to any damages must be apportioned and commensurately reduced.
2. The damages issues calling for assessment are limited to claims for past and future economic loss, and related superannuation losses. The defendant has raised an issue as to the credibility of the plaintiff's evidence on matters to do with the extent of her disabilities, and alleged that the plaintiff had grossly exaggerated those matters.

Evidence overview

1. The plaintiff gave oral evidence. The plaintiff also called expert evidence on liability from Ms Louise Whitby, an ergonomist, as well as expert evidence from Mr Craig Martin, a vocational assessor. The remainder of the evidence was documentary and will be referred to where it becomes relevant to do so.
2. In the expert opinion of Ms Whitby, the plaintiff's actions of descending the ladder, where the single point of contact with the stepladder was a narrow-based foot placement, combined with the high centre of gravity whilst supporting the mannequin, together with the construction of the top of the stepladder, reduced her stability, leading to her over balancing and falling. Ms Whitby identified the risk of falling as high. She identified the system of work as unsafe. She identified the easy means of prevention of the fall by the provision of a hooked mannequin, using a shepherd's hook to take hold of such a mannequin, and the provision of a proper working platform or a high more suitable stepladder: Exhibit "C", p17, paragraphs [103] - [104]; [106]; [115]; [116] - [123].
3. The report of Mr Martin identified the plaintiff's post-accident work capacity as being for part-time for 4 hours per day, 3 days per week with restricted activities. He also stated that the plaintiff's ability to gain and sustain employment on the open labour market was very poor, due to her described disabilities, which, he argued, has led to the plaintiff having a loss of earning capacity: Exhibit "B", pp 163-165.
4. The full effect of Mr Martin's comments in that regard cannot be applied to the plaintiff's claim for impairment of her earning capacity because his opinion, as summarised above, was in part based on the assumption that the plaintiff has had a neck injury in the subject fall: Exhibit "B", p155. The plaintiff conceded that as a result of a consent award in the Worker's Compensation Commission entered in the defendant's favour, notwithstanding an absence of a hearing on the merits, she is estopped from claiming that she suffered an injury to her neck in the subject fall: MFI "1", at 63; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267, at [9].

Procedural matters

1. There were a number of procedural matters that arose during the hearing, as follows: 1. There was debate about the admissibility of various expert opinions. This led to the rejection of reports prepared by an expert retained by the defendant as the material sought to be tendered did not comply with the rules for expert evidence: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); 2. The defendant's proposed course of seeking to cross-examine the plaintiff on the products of some previously undisclosed surveillance material was disallowed on a consideration of the dictates of justice: UCPR r 31.10; s 318 of the WIM Act; Civil Procedure Act 2005, s 58(2); 3. The defendant sought to tender a supplementary and previously unserved medical report dated 14 September 2017 from Dr David Millons, a consultant surgeon. That tender was rejected because of non-compliance with the rules as to service of medical reports: UCPR r 31.28. 4. The rejection of the report from Dr Millons led to a successful application on behalf of the plaintiff to withdraw consent to the earlier tender of the 4 April 2017 report of Dr Millons, on two bases. First, there was non-compliance with s 318(c) of the WIM Act, and secondly, there was non-compliance with UCPR r 31.28(4)(a), absent the defendant showing the existence of exceptional circumstances.
2. In my reasons, I will nevertheless make some analytical reference to the reports of Dr Millions to allow for the possibility that on an appeal, it might be held that his reports were rejected in error.

Credibility and reliability of the plaintiff's testimony

1. In the paragraphs that follow, I record my impressions and conclusions concerning the credibility and the reliability of the testimony given by the respective witnesses.
2. The plaintiff was the only witness who gave oral evidence on factual matters. The defendant accused the plaintiff of grossly exaggerating her symptoms of disability: T134.2; T135.25; T143.42.
3. I have not accepted the defendant's submissions in that regard. Instead, I consider that she gave her evidence in a straightforward manner. On the first day of her evidence, the plaintiff was affected by a heavy cold, however her evidence was readily understandable. In light of the descriptions in the medical evidence that the plaintiff presented in an anxious manner and the question of abnormal illness behaviour was raised, I am not satisfied that the defendant's observation of gross exaggeration of symptoms is fairly made. That is so particularly where the defendant's medical expert, Dr Miniter, identified the fact that the plaintiff had a poor progress because of a possible psychiatric diagnosis, which was not explored in the evidence: Exhibit "2" pp 13-14.
4. There were no credibility issues that emerged from the evidence of the respective experts, Ms Whitby and Mr Martin, who were called to give oral evidence at the request of the defendant.

Facts

1. Unless otherwise stated, my findings of fact now follow on matters concerning: (1) the plaintiff's background circumstances; (2) the plaintiff's pre-accident health and injury history; (3) the accident circumstances; (4) the injuries she sustained in the subject accident; (5) the initial assessments and treatment she received; (6) the further medical and allied reviews that have been undertaken in respect of the plaintiff; (7) the evaluation of opinions within the body of the medical evidence tendered; (8) the nature and the extent of her ongoing disabilities; (9) the effect of those disabilities on her earning capacity; and (10) the question of mitigation of damage.

(1) Plaintiff's background circumstances

1. At the time of the accident, the plaintiff was aged 31 years. She was married with two children. Since the accident she has had three more children before separating from her husband, some 18 months before the hearing. The plaintiff had completed her Higher School Certificate. She was aged 39 years at the time of the hearing. Her 5 children range in age from 3 years to 10 years.
2. In 2008 the plaintiff had completed a computer knowledge course at TAFE: T93.40. Before the accident, the plaintiff had also completed a one year diploma course in early childhood education.
3. At the time of the accident, the plaintiff was working variable part-time hours for the defendant as a shop and sales assistant. Following some discussions with her employer, she had expected that this work would eventually result in a full time position. She needed to work in order to manage her mortgage and living expenses.
4. At the time of the accident the plaintiff was enrolled in an undergraduate degree course at the University of Western Sydney. If she had proceeded to complete and to obtain her degree, this would have enabled her to work with pre-school children: T123.50 - 125.32. She had the ambition of seeking to obtain a Master's degree with the aim of becoming a primary school teacher: T67.1 - T67.12.
5. The plaintiff's work history was that whilst she was still at school, she had worked part-time in a fast food outlet. That work continued between 1992 to 1998, including after she had left school in 1995. She then worked in a permanent part-time position in a supermarket between 1998 and 2005. She left that work when she was pregnant with her first child.
6. In April 2005, the plaintiff commenced working in the retail fashion industry for Millers, which traded in the defendant's name. She initially worked at the defendant's stores at both Bonnyrigg and Chester Hill, but from March 2009, which was a few weeks before the subject accident, she worked for the defendant solely at is Chester Hill Store. Throughout these positions, the plaintiff maintained the ultimate aim of working in childhood education.
7. The plaintiff's working shifts in the employ of the defendant varied between 17 hours and 22 hours per week: T22.25 - T22.48. Those shifts sometimes involved work up to 30 hours on 5 days per week: T98.6 - T98.18. Her shifts and working arrangements also varied so that she could attend to her child care responsibilities: T24.5 - T24.47.

(2) Plaintiff's pre-accident health and injury history

1. The plaintiff had experienced a number of work-related injuries before the subject accident whilst working with previous employers. In 1999, she fell on a sloping floor at work, and injured her lower back: T19.21. She was treated with physiotherapy for that injury: T92.2. In 2003, she injured her left shoulder following a fall at work: T92.45 - T93.5.

(3) Accident circumstances

1. Within the defendant's shop premises, there was a high display shelf, on which a life-sized torso mannequin was located. A customer entered the store and requested to see the top which was on the mannequin. The plaintiff then obtained the defendants' two-step folding ladder which was used regularly to access display mannequins that were otherwise out of reach. The evidence includes a photograph of that stepladder: Exhibit "G". She placed the ladder just under the mannequin. She then climbed the steps of the ladder, reached above her head, took hold of the mannequin with both hands, and then started to descend the stairs.
2. The mannequin in question weighed about 5kg: T29.33. In order to bring it down from the shelf the plaintiff had to lower it down and hold it in a hugging position, close to her body, at about waist height. The headless section of the mannequin was approximately level with her own face. Those manoeuvres are pictorially represented in Appendix 4 to the report of Ms Whitby: Exhibit "C". She then commenced to step backwards, intending to alight from the stepladder.
3. In those events, the store telephone rang. The plaintiff felt that she needed to answer the telephone quickly, as it was the requirement of her employer that she had to answer the telephone when it rang: T35.5. At that time, the plaintiff was focussed on two tasks, one being, to get down from the ladder in order to hand the customer the top that she had requested so that she could try in on, and the other task was to answer the telephone promptly: T34.33. She felt that she had to do this quickly as she was in the only staff member in the store at that time: T34.48. It was the practice of her employer to call in the mornings to issue instructions for the working day.
4. In those events, the plaintiff misplaced her footing on the second step, lost her balance, and then fell backwards, in a movement to the left, whereby her left arm took the force of the fall as she tried to protect her head from injury: T30.48-T32.49. She then fell onto her left arm and elbow, and onto her left shoulder: T33.10-T33.39. The plaintiff variously described the fall as a twist, trip and a slip, whilst holding the mannequin, and stepping backwards.

(4) Injuries sustained in the subject accident

1. Initially, the plaintiff did not pay much attention to which parts of her body had been injured. Instead, she just carried on with her work for the rest of the day: T39.6. In addition to the initial injuries to her left arm, elbow and shoulder: T33, later in the day, she noticed a bruise to her left thigh: T39.10 - T39.19. The next day she felt aches and pains in her left thigh and left arm. She felt that pain going up to her left shoulder and there was associated discomfort whilst trying to sleep: T 39.25 - T39.44.
2. Consequent upon the matters outlined at paragraph [9] above, in these proceedings, the plaintiff's neck complaints cannot be considered to be accident related.

(5) Initial assessment and treatment

1. On the day following the accident, the plaintiff attended at Fairfield Heights Medical Centre. Her usual doctor, Dr Sanki, was not there that day, so she was seen by another doctor whose name she could not recall: T40.49. It appears this was Dr Patel.
2. The plaintiff told that doctor she experienced problems with her left leg and left shoulder. That doctor referred her to see Dr Sanki in the same practice. She saw him a few weeks later: T41-T42. She was then referred for x-rays to her neck, both upper shoulders and her hands: T42.10-T43.5. She was also referred for physiotherapy: T43.10-T44.27.
3. Dr Sanki suggested that the plaintiff have cortisone injections but she was "scared of the needle" and did not proceed to have that treatment: T47.16.
4. Over the course of time, due to overuse of her right arm to compensate for her left upper limb problems, the plaintiff developed a painful condition of her right arm. She described this pain as running all the way up to her neck and down both shoulders: T47.30-T47.40. She said this developed because she felt she had to protect her left arm, so she adopted the practice of using her right arm more often: T48.40.

(6) Subsequent medical and allied reviews

1. In the paragraphs that follow, I set out the chronology of the plaintiff's pre-accident medical and allied reviews: 1. On 3 April 2009, at the referral of her general practitioner, the plaintiff was examined by Dr AJ Sanki, a consultant surgeon, for an evaluation of her painful left shoulder injury, which was associated with pain radiating into the left scapular region. This was superimposed on a previous condition of tendonitis of the supraspinatus tendon which became evident in 2003, and a neck injury in 2004, which on investigation, revealed that she was found to have an anterolisthesis on C4/C5, in the context of a previous injury in 2002; 2. On 17 April 2009, Dr Sanki obtained radiological evidence in the form of an ultrasound of the plaintiff's left shoulder which was interpreted as being consistent with the presence of supraspinatus tendonitis. At the same time, there was CT scan evidence of spondylitic changes being present in the cervical spine at the levels C3/C4, in the disco-vertebral joints, with evidence of loss of disc height, end-plate sclerosis, end-plate osteophyte formation, and mild arthritic change present in the facet joints, and a broad based disc bulge abutting the anterior part of the thecal sac: Exhibit "B", pp 130 - 131; 3. On 4 May 2009 and 16 December 2009, Dr Sanki saw the plaintiff again. His resultant provisional diagnosis was of a left-sided supraspinatus tendinopathy. He considered the plaintiff's presentation was consistent with the history she gave, and he identified her prognosis to be fair: Exhibit "B", pp 126 - 127; 4. On 12 May 2010, Dr Sanki expressed the view that the plaintiff's left shoulder and neck pains indicated that she was only fit for duties that did not put stress or strain on her left shoulder and her neck: Exhibit "B", p 129; 5. On 21 May 2010, the plaintiff underwent an ultrasound study of both shoulders which, on the right side showed supraspinatus tendinosis with a 1.3cm full thickness tear, and on the left side, a supraspinatus tendinosis associated with impingement: Exhibit "B", p 143. Absent the availability of reports from the 2003 shoulder injury for comparison, it is difficult to determine whether that tear was due to the 2009 injury; 6. On 30 September 2011, the plaintiff was reviewed again by Dr Sanki, who noted her history of complaints of pain in both shoulder joints, with difficulties in movement, plus numbness in both upper limbs radiating from the forearms down to the wrists and hands, involving all the fingers of both hands. Absent any reported improvement in symptoms to that time, he recommended MRI scans of the shoulders and nerve conduction studies in both hands: Exhibit "B", p 132; 7. On 15 December 2011, at the request of Dr Sanki, the plaintiff underwent MRI studies of her cervical spine and of her shoulders by Dr Joseph Sanki: Exhibit "B", pp 133 - 135. Those studies were interpreted as showing minor posterior disc protrusions at C3/C4 and C4/C5, with minor indentations to the anterior dura (at p 133), mild external impingement of the supraspinatus musculotendinous junction, and sub-deltoid-sub-acromial bursitis and tendinopathy of the supraspinatus tendon on the right side (at p 134). There were and similar findings on the left side, but also with mild tendinopathy of the subscapularis tendon (at p 135). There was no evidence of the results of any recommended nerve conduction studies, and there was no evidence that those recommended studies had in fact been undertaken; 8. On 25 June 2012 Dr Sanki provided a letter to the plaintiff's former solicitor summarising his assessment and treatment of the plaintiff to that time: Exhibit "B", pp 136 - 139. 9. On 21 September 2012, Dr Sanki wrote to the plaintiff's former solicitor advising the plaintiff had a right shoulder problem which resulted from overuse of the right upper limb to protect her left shoulder, and that this has caused her pain and incapacity: Exhibit "B", p 140; 10. On 19 September 2012, Dr Sanki provided the plaintiff's former solicitor with an opinion on the plaintiff's whole person impairment as assessed by him: Exhibit "B", pp 141 - 142; 11. On 8 April 2014, the plaintiff was assessed by Associate Professor SK Cyril Wong, a general surgeon, for the purpose of an assessment of her degree of permanent impairment: Exhibit "B", pp 173 - 180. That assessment was undertaken at the request of the Registrar of the Workers Compensation Commission pursuant to s 319 of the Workplace Impairment Management Act 1998. The only body parts or symptoms referred for assessment were both upper extremities. Accordingly, Associate Professor Wong restricted his examination to those areas. He ultimately concluded that the plaintiff had soft tissue injuries to her shoulders, with continuing pain, stiffness, and dysaesthesia spreading to her arms, forearms and hands. He concluded these problems affected many aspects of her daily activities and her capacity for work. He also concluded there were no significant inconsistencies identified in her presentation for assessment. Associate Professor Wong's assessment of 20 per cent whole person impairment was limited to the body systems that he examined, which specifically excluded any examination of the plaintiff's neck, thoracic and lumbar spines, and lower limbs; 12. On 24 April 2015, at the request of her former solicitors, the plaintiff underwent an assessment by Dr James Bodel, an orthopaedic surgeon: Exhibit "B", pp 144 - 149. Dr Bodel noted that he had previously seen the plaintiff on 16 November 2010 at the request of other solicitors. In the current assessment, he noted the plaintiff's history of injury to the neck, left shoulder, right shoulder, both wrists, hands and the left thigh. He also noted the current complaints of neck pain, pain in both shoulders, and some related postural over shoulder difficulties, inter-scapula and thoracic pains, and numbness and tingling in all 5 digits of both hands. He noted the plaintiff's anxious manner and some restrictions in her range of movements. Following his examination he identified conclusions as follows: 1. That in this subject accident, the plaintiff had suffered soft tissue injuries to the neck and to both shoulders. He noted no definite clinical evidence of neurological abnormality in the upper limbs, but he specifically noted that the plaintiff's injuries were causally related to the subject incident on 31 March 2009: Exhibit "B", p 148; 2. By the time of his examination, the plaintiff's complaints had stabilised, had remained static, and he considered that she had continuing disability consistent with ongoing soft tissue injuries to the neck and to both shoulders, confirmed by the clinical abnormalities on testing: Exhibit "B", p 148; 3. He further noted his opinion that the plaintiff remained partially incapacitated for work as a consequence of the subject injury, with particular reference to prolonged head down posture, or strenuous repetitive tasks with the arms overhead: Exhibit "B", p 149; 1. On 22 June 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Paul Miniter, a consultant orthopaedic surgeon: Exhibit "2", pp 9 - 14. Dr Miniter provided his opinion "entirely upon the evaluation of objective findings" he made in his examination of the plaintiff: Exhibit "2", p 9. Dr Miniter restricted his evaluation to the plaintiff's bilateral upper limb and shoulder girdle discomfort: Exhibit "2", p 10. On reviewing the plaintiff's cervical CT scans, Dr Miniter interpreted these to be within normal limits: Exhibit "2", p 11. Dr Miniter was of the opinion the plaintiff was fit for employment without restrictions, and he stated that he "would regard her as a high risk to any potential employer": Exhibit "2", p 3. Curiously, without a reasoned basis identifying which aspect of her condition had a poor prognosis, he went on to raise the spectre of a possible psychiatric diagnosis: Exhibit "2", pp 13 - 14; 2. On 4 April 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr David Millons, a consultant surgeon. In his report, Dr Millons indicated that it was difficult for the examiner, at that time, eight years after the plaintiff's work accident, "to make much sense of an examination just now": Exhibit "1", p 10. He noted that her "whole presentation appears to be something of an abnormal illness behaviour with little orthopaedic evidence of much untoward going on". In making that observation, he also noted that an occupational reviewer had, on 27 November 2015, concluded that there was a high level of disability for activity of the upper limbs and that she was suffering from a significant emotional disturbance. Dr Millons noted, after making findings on his examination, that the plaintiff has widespread body tenderness, with restriction of movements of the neck and lower back as a result of possible ongoing aggravation of some degenerative changes in that area: Exhibit "1", pp 10 - 11. The emotional disturbance referred to by Dr Millons was not the subject of follow up reports.

Evaluation of medical opinions

1. In the paragraphs that now follow, I set out my evaluation of the medical opinions tendered and sought to be relied upon in this case.

Plaintiff's treating doctors

1. The medical letter and reports generated by the plaintiff's visit to doctors, as summarised at paragraphs [31] to [35] above do not raise question or doubts over the reliability of the context of those letters and reports. I accept the conclusions set out therein except with regard to the opinions of Dr Miniter and Dr Millons, for the reasons that will shortly follow.

Dr Bodel

1. The opinion of Dr Bodel with regard to the plaintiff's neck problems must be read down in light of the estoppel on that matter, as referred to at paragraph [9] above.

Dr Miniter

1. In my view, in this case, Dr Miniter's opinions are problematic in terms of reliability. The evidence shows that he was asked by the defendant's doctor to make a diagnosis which addressed various matters, including the plaintiff's complaints: Exhibit "3", p 2.
2. Notwithstanding that request by the plaintiff's solicitor, an examination of his report dated 22 June 2015 reveals that his opinion was based entirely upon his objective evaluation of the findings that he made: Exhibit "2", p9. That must reasonably mean he has not adequately considered the plaintiff's subjective complaints. In my view, that is a shortcoming in his approach to assessment, which renders his report unreliable, as it is based on an incomplete evaluation of relevant subject matter.
3. In my view, that identified flaw must reasonably flow on to his second report dated 4 April 2007: Exhibit "1". That second report is couched in qualified terms, in which he identified abnormal illness behaviour in the plaintiff, and stated that he found it "difficult to make much sense of an examination just now, eight years after an incident at work"; Exhibit "1", p10. His opinions, as I read them, are equivocal, and therefore only of limited reliability.

Dr Millons' opinions

1. Although I have ruled that the opinions of Dr Millons should be excluded from the consideration, allowing for the possibility that I might be found to have erred in that view, I set out my evaluation of his views. He was asked to specifically identify his diagnosis of the plaintiff's problems, which he stated to be as follows: 1. Aggravation of constitutionally based degenerative changes in the cervical spine, a matter upon which the plaintiff is estopped from relying; 2. Possible soft tissue injuries to both shoulders, initially to the left, and then later to the right; 3. Possible aggravation of degenerative changes in the lower lumbar region; 4. Possible aggravation of degenerative changes to the left lower limb;
2. Dr Millons concluded that at best, the plaintiff was fit for part-time employment. He indicated the plaintiff was only suited to work of a light nature, avoiding bending, avoiding lifting more than 5kgs, avoiding working in awkward or confined spaces, and avoiding work that entails a lot of turning of her head and her neck.
3. Dr Millons stated that "if one accepts her at face value", she would in his opinion have difficulty performing the duties of a sales assistant in a store-based environment whereby she would be on her feet for most of her shift. He also stated that if her problems "non-organic" they could be overcome. He suspected that her work capacity would improve.
4. Dr Millons expressed the opinion that the plaintiff "appears to have sustained some soft tissue injuries to her neck, left shoulder, back, and possibly lower limbs in (the) accident": Exhibit "1", p 13. He said he "would have expected to have settled long since with the passage of time but she does maintain ongoing symptoms" and there is "evidence of the non-organic about her presentation".
5. Dr Millons concluded that: "If one accepts her statements then her present incapacity does relate to the incident on 31 March 2009 with perhaps some impact from things before that time". He also concluded that until the plaintiff "comes to terms with everything somewhat better than she seems to have done, the prognosis will remain guarded and it seems likely that she will continue to complain": Exhibit "1", p 13.
6. I see no basis from within the evidence for not accepting the plaintiff's statements as to her described disabilities. The critical comments within the opinions of Dr Millons does not serve as a basis for rejecting her evidence on those matters.

Disabilities that remain

1. As I have accepted that the plaintiff gave truthful accounts of her problems when she provided histories to the various practitioners who examined her, I consider that in addition to her oral evidence, it is appropriate to draw upon the reports of those practitioners as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]-[143]; s 60 of the Evidence Act 1995. Those matters must reasonably exclude the complaints about her neck, asked as the subject of an estoppel, as already identified.
2. The plaintiff's ongoing physical disabilities comprise the experiencing of sharp pains throughout her shoulders and going down into her upper back, multiple times per day: T53.5 - T53.22. This interferes with her sleep at night: T53.33.
3. The plaintiff has difficulty with commonplace household tasks, such as lifting, including when hanging out washing. She stated that lifting activity "really hurts": T53.40-T54.5. She also has difficulty manipulating some garments when dressing, this being difficulty with buttons, and putting on a bra: T55.13-T55.31. Tasks such as mopping, vacuuming, and even light lifting tasks such as lifting cooking pots, and lifting small children, causes her pain and she avoids those activities: T55.48-T56.16.
4. She considers that the commonplace tasks that were part of her duties when working for the defendant are now beyond her because of the physical stresses and strains associated with those tasks. When she was working, this problem has slowed down the pace of her work. Those tasks include lifting, unstacking, repacking boxes of merchandise stock, hanging clothes, including hanging clothes on high racks, and pulling the vacuum cleaner around at work when performing cleaning duties: T56.29-T61.3.
5. The plaintiff had the ambition of working full time as a primary school teacher: T63.36. After her injury she found that she could not finish her studies for the enrolled degree course of Bachelor of Early Childhood Studies. Her inability to study has arisen because of her experience of pain, which also prevented her from working. She consequently withdrew from her degree course in the first half of 2010 when she found she was falling behind in her coursework because of these problems.
6. In 2011, she attempted to return to her course, but found that she could not continue because of the pain she was experiencing when studying and sitting in lectures, which proved to be too much for her to continue. These physical problems upset her greatly: T65.6-T65.27. It appears that she has not had any professional assistance in dealing with the emotional effects of her injury.
7. The plaintiff finds sitting in the same position such as when trying to study or driving, difficult. This included when sitting at a computer to attend to her assignments: T66.1-66.21. The plaintiff experiences numbness in the fingers and this goes all the way up to her arms. This causes her pain, stress and difficulty with concentration: T66.23-T66.35. The activity of driving, particularly when turning the steering wheel, causes her to experience difficulty, and pain throughout her shoulder: T 66.35-T66.41.
8. The plaintiff's experience of pain when sitting causes her to become restless. She cannot sit still when in pain and she feels that as a result, her working capacity is impaired, especially if she has had to do lifting. Her experience of strains in her arms and shoulders when lifting, will be problematic for her with commonplace retail occupations: T67.26 - T68.5.

Work effects

1. The plaintiff is unhappy that her activities are limited in the manner described: T68.13-T68.18. She feels her goal of becoming a primary school teacher is now beyond her because of her experience with pain, such as when carrying out commonplace activities, such as lifting her arms up, holding a pen up to a whiteboard, lifting young children, and carrying any furniture in the school setting T68.20 - T69.26. The plaintiff's student cohort are all now working as primary school teachers: T65.48.
2. The plaintiff's views on her capacity to lift and carry have been based on her experience in holding and carrying her own infant children, activities which proved to be painful for her: T84.40-T84.50. Those views were also based on her experience in carrying out shopping activities for common grocery items; T85.1-T87.24.
3. Before her injury, in March 2009, the plaintiff was working 22 hours per week, but she had been in discussions with her employer about increasing her hours to that of a full-time position; and understood when one would next become available, it would be hers: T87.26 - T88.24.
4. The plaintiff's family plans changed after her accident. Beforehand, she had intended to have only three children and work full-time. Her changed plans influenced her inability to continue in her studies, and with regard to her work: T90.5 - T90.44. It would seem that with five young children in her care, it would be some time before she could consider seeking to resume her studies to seek the qualifications and work she previously intended to pursue.
5. The plaintiff has found that she could not work, she was unable to sleep at night because of her pain, and these problems continue to affect her, including being tired: T89.30 - T89.45.
6. The medical evidence plainly indicates that the subject fall has left the plaintiff with a reduced capacity to work, which is likely to cause her to suffer a loss of income. In making an assessment of her loss in that regard a discounting allowance must be made an account of the non-claimable neck problems she experiences.
7. I do not accept Dr Miniter's opinion that the plaintiff is fit for employment without restrictions: Exhibit "2", p13. That opinion does not sit well with his stated view that he would regard the plaintiff as a high risk to any employer: Exhibit "2", p13.
8. The defendant's vocational expert, Ms Wyeth noted that the plaintiff was pain focussed, and this appeared to be a barrier to her return to work: Exhibit "2", p29, Ms Wyeth observed that according to the plaintiff's functional capacity assessment. The plaintiff is unable to perform over-head reaching movements and is limited to 90 minutes of driving: Exhibit "2", p69. Ms Wyeth recommended that in view of the plaintiff's injury symptoms, she be assisted with a supervised gym program to increase her strength and fitness with a view to achieving a graded return to work, but even then, the plaintiff had an only limited insight into her capacity, and needed to enhance her confidence and motivation to return to work. I accept those opinions. In my view, those unchallenged opinions indicate an impairment of the plaintiff's earning capacity that requires monetary assessment.
9. For whatever reason, but known to the parties, the possibility of a psychiatric diagnosis, as raised by Dr Miniter (at Exhibit "2") p14), was not explored or further explained in the evidence.
10. Dr Sanki's assessments, in 2010 and 2012, to the effect that the plaintiff is fit for suitable duties that do not put stress or strain on her left shoulder and her neck appears to continue to apply with a guarded prognosis; Exhibit "B", p 129; p 139.
11. In 2014, Associate Professor Wong observed that the plaintiff had restricted range of motion in the shoulder: Exhibit "B", p90. He also observed that the effects of the plaintiff's injuries contrive to affect many aspects of her daily activities and her capacity to work: Exhibit "B", p91.

Mitigation

1. The plaintiff was duty bound to mitigate her damages. That duty arises at common law and also pursuant to s 151L of the WC Act. That section relevantly provides: (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker. NSW Government
2. The plaintiff has made no attempt to find other employment due to pain in her shoulders and in her upper back: T53.12. I have considered that evidence in light of the requirements of s151L of the WC Act. In any assessment, the plaintiff's complaint of disability, as summarised at paragraphs [48] to [55] above adequately explain the plaintiff's actions in that regards. I do not consider the plaintiff to have failed to take reasonable steps to mitigate her losses.

Issue 1 - Identification of risk of harm

1. Although the Civil Liability Act 2002 does not apply to these proceedings, in this analysis, it is convenient to identify the relevant risk of harm that was associated with the plaintiff's work tasks according to what might otherwise have been required by an application of that Act.
2. The plaintiff's workplace, and her assigned work duties, required that from time to time, that she must use a stepladder whilst carrying or manipulating merchandise on dressed shop display mannequins. Those tasks required her to use both hands in an elevated position whilst standing on a stepladder at heights at which she would have no available handhold, where, because she had to hold the mannequin close to her body, there was an altered and higher centre of gravity, as was explained in the report of Ms Whitby.
3. In those circumstances, the relevant and foreseeable risk of harm of falling from the ladder was not insignificant. It was a risk for which reasonable care needed to be taken by the employer for the safety of the plaintiff. The nature of the plaintiff's work meant that she was at a significant risk of falling when either ascending or descending the stepladder.

Issue 2 - Duty of care and non-delegable scope

1. An employer owes a non-delegable common law duty of care to employees to take reasonable care to avoid exposing them to unnecessary risks of harm from injury. Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, at [101]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47. The fact that the subject method of mannequin retrieval or placement has been standard practice, without prior incident, does not foreclose the issue of negligence where it is evident that there is a foreseeably dangerous situation, as is the case here: Ferraloro v Preston Timber Pty Ltd (1982) ALR 627, at 629 lines 15 - 20; (1982) 56 ALJR 872, at 873.
2. If there is real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of work that eliminates the risk, or if that is not foreseeable, then the provision of adequate safeguards: Hamilton v Nu-Roof (WA) Pty Ltd [1956] HCA 34; (1956) 97 CLR 18, at 25. In devising such methods of work, the employer must take into account the possibility of fallible thoughtlessness, or inadvertence, or carelessness on the part of the employee: Smith v The Broken Hill Co Pty Ltd [1957] HCA 34: (1957) 97 CLR at 337; at 342.
3. The described duty of care is one that an employer is not able to delegate. The duty is not static, and it is directed at employee protection, without waiting for an accident to occur.

Issue 3 - Whether the defendant was negligent

1. In determining whether there has been a breach of duty of care, the question to be addressed first is, in this context, whether a reasonable employer in the position of the defendant would have foreseen that the system of work or work tasks required if the plaintiff involved a risk of injury to the plaintiff. If the answer to that question is in the affirmative, then the next question for determination is what a reasonable employer in the position of the defendant would have done in response to the risk, balanced commensurately with the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience if taking alleviating action against such risks: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [15].
2. In support of the claim that the defendant was negligent, the plaintiff has pleaded the following particulars of negligence: 1. Failed to devise and implement a safe system of work; 2. Failure to provide proper equipment for carrying out the work task; 3. Failure to provide a ladder that was suitable for the task in that it was too small; 4. Failure to provide a means of getting clothing from the mannequins that did not require climbing up to the shelf; 5. Failure to provide adequate manual assistance; 6. Failure to supervise so as to ensure the task was carried out without risk of injury; 7. Failure to exercise due and proper care to the Plaintiff's safety; 8. Failure to comply with the obligations imposed by the Work Health & Safety Act 2011 and the Regulations thereto; 9. Failure to undertake adequate risk assessment to identify the potential hazards and apply effective control strategies; 10. Failure to implement a policy ensuring that a second worker be present whenever a step ladder is used; 11. Failure to instruct the Plaintiff to ignore phone calls whilst serving customers; 12. Failure to instruct concerning the safe method of getting clothing from the mannequins that were on the overhead shelf.
3. In my view, a work system that required someone in the position of the plaintiff to ascend or descend a step ladder whilst holding a 5kg mannequin in both hands with an altered centre of gravity, limited room for manoeuvrability and no handhold, was fraught with the foreseeable risk that there might be an injurious fall from the step ladder in the course of such work.
4. The fact that the defendant's workplace had not beforehand experienced the materialisation of such a risk does not derogate from the foreseeability of that risk materialising. The risk of falling from a stepladder was not a far-fetched or fanciful risk of occurrence. The adoption of an awkward position on a stepladder where the act of descent required backward steps where the employee's balance was precarious without a handhold, and could easily have been lost, resulting in a fall.
5. In this case, the absence of a handhold and the requirement of manipulating the mannequin with both hands, at a height above the ground, at an altered centre of gravity on a working platform of limited space and manoeuvrability, created what I find to be a very substantial and highly probable risk of a fall which could result in avoidable injury. This is what in fact occurred. I consider that the above particulars of negligence as relied upon by the plaintiff have been made good on the evidence.
6. In my assessment, in this case, the plaintiff's participation in the described work system descending the steps, backwards whilst working alone, necessarily holding a mannequin by the use of both arms and hands without an available handhold involved an inherently dangerous enterprise.
7. That danger was within the defendant's knowledge and experience. It could have been readily addressed by employing an easily and inexpensively modified work system that utilised mannequins that could be manipulated by means of a hooked device that did not require the use of steps or the adoption of a less awkward position on a stepladder where the act of descent required backward steps. The defendant had such mannequins in its other store.
8. I therefore find that the defendant was in breach of the duty of care it owed to the plaintiff in her workplace. The plaintiff would not have incurred that fall were it not for that breach of duty on the defendant's part. The plaintiff has established the necessary ingredients for a finding of negligence against the defendant in the described circumstances.

Issue 4 - Whether the plaintiff was contributorily negligent

1. The defendant relies upon a defence of alleged contributory negligence on the plaintiff's part, and in that regard, it has pleaded the following particulars of contributory negligence: 1. Failed to take any proper care in and about the performance of her work; 2. Failed to make use or properly use the proper equipment provided for her work; 3. Failed to keep a proper look out in the performance of her work; 4. Failed to take any steps to avoid the consequence of any act or omission of the defendant relied upon by them; 5. Failed to obey instructions in the performance of her work; 6. Failed to take proper precautions for her own safety in the performance of her work; 7. If the plaintiff's work with the defendant could not be safely undertaken (which is denied), elected to do so when not required so to do by the defendant; 8. If the gear, plant and equipment which the plaintiff was required to operate for the defendant were not proper and safe (which is denied), failed to advise the defendant of it; 9. If the gear, plant and equipment which the plaintiff was required to operate for the defendant were not proper and safe (which is denied), failed to request the defendant to replace or adjust that gear, plant or equipment; 10. If the gear, plant and equipment which the plaintiff was required to operate for the defendant were not proper and safe (which is denied), failed to cease to use that gear, plant and equipment; 11. If the plaintiff required further supervision in the performance of her work (which is denied), failed to request it from the defendant; 12. If the plaintiff required further instruction in the performance of her work (which is denied), failed to request it from the defendant; 13. If the plaintiff required further training in the performance of her work (which is denied), failed to request it from the defendant; 14. Further or in the alternative, the plaintiff, with full knowledge and understanding of the danger arising from the risk referred to in the Statement of Claim, momentarily accepted that risk resulting from each and every one of the acts and omissions complained of in the Statement of Claim and, in the circumstances, the plaintiff is not entitled to maintain and is barred from making her claim.
2. In my assessment, at best, the plaintiff's conduct, in becoming distracted by the telephone ringing when it did, was nothing more than an incident of mere inadvertence, and this did not amount to contributory negligence on her part: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349.
3. The plaintiff was foreseeably distracted whilst working at a precarious height from which she could foreseeably fall. She did so because she was adhering to the system of work that had been devised for her by her employer. She lost her footing whilst carrying a mannequin backwards down a step ladder without the opportunity to secure a safe handhold in circumstances where there was an altered centre of gravity and manoeuvrability, and only limited stable foothold. It is immaterial that she had done so before without incident. On this occasion she was working alone and became distracted by another work task that also called for her attention. This was an accident waiting to happen. I therefore see no sound basis for a suggested finding of contributory negligence.

Issue 5 - Assessment of damages

1. In the paragraphs that follow, the heads of damage claimed by the plaintiff are assessed.

Actuarial factors

1. As the plaintiff was aged 39 years at the time of the hearing, she has an expected remaining working life of 28 years to age 67. There is no suggestion in her evidence that she would not have worked to what is now considered in the community to usual age. The 5 per cent multiplier for 28 years is 796.6.

Past economic loss

1. The plaintiff claimed an amount of $109,500 for damages for past economic loss. That sum was calculated on the basis of a claimed loss of $300 per week net over a stated period of 443 weeks since the time of her injury.
2. In contrast, the defendant submitted that the plaintiff's past economic loss should be assessed at $100 per week from November 2010 to September 2017, including loss of superannuation.
3. In my view, the plaintiff's submitted past economic loss argument is overly simplistic. It assumes an uninterrupted continuity of work without adequately reflecting the plaintiff's necessary absences from work due to her child rearing responsibilities. The calculation incorrectly commences straight after the accident, and not from the end of October 2010, when she left work due to her inability to continue.
4. The plaintiff's pre-accident circumstances, in which she was working only part-time, and the fact that she had not completed her degree course, must also be taken into account. Those factors preclude a precise mathematical calculation in view as discounting factors of the inherent imponderables associated with the plaintiff's pre accident situation.
5. An indication of the plaintiff's earning capacity whilst in the employ of the defendant is found from her PAYG payment summary for the year ended 30 June 2009, namely $11,593 per annum or $222.94 per week, which is within the tax free threshold: Exhibit "B", p197.
6. Allowing for ordinarily expected increments in such earnings over the course of time, and also allowing for the potential for increased hours over the time since 2010, I consider that an average net weekly rate of earnings of $300 would be a reasonable baseline for assessment of the claim for past-economic loss.
7. The period between the plaintiff's injury on 31 March 2009 and the commencement of the hearing on 25 September 2017 is the equivalent of 431 weeks.
8. In that time, I consider it reasonable to assess the plaintiff's damages for past economic loss on the basis of continued part-time work, interspersed with her child care responsibilities. In my view, it cannot be reasonably assumed that she would not have had more children but for the subject accident. It would also be unduly speculative to conclude that she would most probably have completed her early childhood degree course but for the subject accident.
9. Some discounted allowance must also be made for time away from work in relation to her three children who were born post-accident, in May 2010, August 2011 and February 2014. The plaintiff's submissions allow for 26 weeks of maternity leave for each of those events. I consider that is appropriate allowance in respect of each post-accident child.
10. In my view, the plaintiff's claim based on a loss of $300 per week net, must also be discounted because of her residual neck problems, which must limit her working capacity, and which are not compensable in these proceedings.
11. Accordingly, I assess the weekly loss in the discounted amount of $250 per week net after making all of those allowances. I consider that sum to be reasonable as it reflects the imponderables of when, and if, she would have otherwise completed her degree course. It also adequately reflects the uncertainty of her incidence of part-time working hours. I consider that the sum of $250 per week is a fair formulation of an average rate of loss over the period of past claim.
12. After allowing an offset of $250 per week for 78 weeks for maternity leave from the period of 431 weeks, as explained at paragraph [96] above, I assess the plaintiff's damages for past economic loss in the amount of $88,250.

Past loss of superannuation

1. The plaintiff's damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of the amount assessed in respect of past economic loss of $88,250 in the sum of $7,942.

Future loss of earning capacity

1. On behalf of the plaintiff a claim was made for future loss of coping capacity in the amount of $728,028. That amount was calculated on the submitted basis of $1202 per week net, less a present residual earning capacity, namely, a loss of $960 per week net, projected on the 5 per cent tables over 28 years (x 796.6) less 15 per cent for vicissitudes, which yields $650,025. In my view that claim is excessive, and not supported by the evidence.
2. In contrast, the defendant submitted that the plaintiff's damages for future economic loss should be assessed in the amount of $56,610 including loss of superannuation, this being the projection of $100 per week projected at 5 per cent over 20 years (x 666.4) less 15 per cent for vicissitudes, but including an allowance for loss of superannuation. In my view, that submission is arbitrary and does not represent fair compensation for loss.
3. In my view the evidence does not reasonably permit the projection of a future weekly loss on the 5 per cent discount tables, as was submitted by the parties.
4. Having regard to the medical opinions that I have already summarised earlier in these reasons including at paragraphs [56] to [66] above, and any findings as to the plaintiff's ongoing disabilities as summarised at paragraphs [48] to [55] above, in my view the most appropriate method by which to assess the plaintiff's damages for future economic loss is by way of an economic buffer. I assess that buffer in the amount of $125,000: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. That buffer assumes that the plaintiff will obtain professional assistance to deal with the emotional effects of her injury, as she must.
5. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $125,000.

Future loss of superannuation

1. The plaintiff's damages for future loss of employer funded superannuation benefits are assessed at 11 per cent of the amount assessed in respect of the amount asses for future economic loss of $125,000, in the sum of $13,750.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Past economic loss $88,250 (b) Past loss of superannuation $7,942 (c) Future economic loss $125,000 (d) Future loss of superannuation $13,750 Total $234,942

Disposition

1. The plaintiff has established her entitlement to a damages award for $234,942 and she should have a judgment for that amount.

Costs

1. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

1. I make the following orders: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $234,942; 2. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to identify a basis for a different cost order; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2018